When quitter Andrew Cuomo nominated former Westchester County District Attorney Janet DiFiore as Chief Judge of the New York Court of Appeals, there was, to be mild, unhappiness. This was not the choice one wanted from a Democratic governor, a conservative prosecutor in the top state judicial post. But Cuomo had the juice to overcome objections, and since there was little expectation that Cuomo’s pick wouldn’t be approved, others fell in line so as not to make enemies with this unfortunate choice.

Cut to yesterday’s judiciary committee vote in the New York Senate for formerly fill-in, now newly-elected, governor Kathy Hochul of the hinterlands. It did not go as well as Judge DiFiore’s vote. Continue reading →

Granted, I came of age when there was no such thing as a bike helmet. Not only did we ride bikes, but we did so everywhere, for great distances, without a second thought. And whether we were on a fancy three-speed English racer or a hip Sting Ray with its banana seat and butterfly handlebars, it was freedom for a kid and our only means of transportation.

I never wore a bike helmet. No one did. And I survived. But then I met Ted, the father of one of my daughter’s friends, who had been an avid bike rider when he was in an accident, went over the handlebars and was severely brain damaged. Ted was such a sweet guy, but what remained was a shell of a human being. It was so sad. I would never let my kids ride without a helmet, even if the law permitted otherwise. But the law didn’t, and I understood why. Continue reading →

There is law. There is duty. And then there is the question of discretion, who gets to decide whether it’s to be executed or not. This is an issue that’s reared its head on numerous levels over the past few years, most notably when progressive prosecutors ran for and won office upon the campaign promise that they would categorically refuse to prosecute laws with which they disagreed.

There’s no doubt that a prosecutor has the individualized discretion to decide not to pursue a particular case. Maybe the evidence isn’t there. Maybe the facts and circumstances are such that she feels it would be an improper or counterproductive exercise of authority. Regardless, it’s within their authority to decide to toss a case. But individualized discretion is very different than categorical exceptions. Continue reading →

There are few people whose words are seized upon to make arguments they never made, never intended, never believed, more than MLK. The reason why is obvious, as they were so respected and revered that the influence of an appeal from authority was undeniable. The problem is that they aren’t here to refute the motives and meanings put into their mouths.

And, indeed, if they were here, perhaps they would have approved of the ideas others impute to them, but it’s disingenuous to use their memory, their words spoken more than 50 years ago, in a different world, with different understandings and different problems, than are now perceived. Continue reading →

Although the Supremes have yet to hand down rulings in the Harvard and University of North Carolina affirmative action cases, it’s assumed that the Court will limit, if not eliminate, the use of race in college admissions. Whether it was called holistic or a collateral consideration only for the educational purpose of creating diverse classrooms on campus, it turned out that it served to produce racial quotas despite all the pretty bows tied around the admission decision. Acceptance for some. Denial for others. Race being the distinction between the two.

In anticipation, colleges are preparing to deal with the aftermath, eliminating standardized testing requirements which, they contend, favor wealthier white students who can afford test prep courses, as well as legacy admissions, sports recruitment, scholarships based on race, early admission, all of which for one reason or another are argued to favor white students over “Black and Latinx” (as if Asians didn’t exist). But I digress. Continue reading →

Governor Kathy Hochul nominated the Presiding Justice of the New York Supreme Court, Appellate Division, Second Department, Hector LaSalle, to be Chief Judge of the New York Court of Appeals, filling the vacancy of former Westchester County District Attorney Janet DiFiore, who had replaced Jeanine Pirro when she was bumped to judge to get her out of the job. One of the things people often fail to realize is that political parties use judgeships as payoffs or dumping grounds to get rid of people.

Why Justice LaSalle is unclear. Was this payment of a debt? It’s hard to imagine that Hochul knew or cared anything about him personally, as she couldn’t find Brooklyn without a map, and LaSalle’s history was as a prosecutor, a past position over-represented already. The last thing New York needed was another former prosecutor on the Court of Appeals, keeping them the majority voting bloc as appointed by Dem governors who feared being viewed as soft on crime. Continue reading →

“I thought I made it clear no cell phones are allowed in my courtroom!”

Judge Marvin Hullander’s face registered equal parts befuddlement and annoyance when he saw James Benjamin set a device that looked like an iPhone at the defense table.

“If I may, your honor?” a voice came from the back of the courtroom. A well-dressed man raised his hand and proceeded to make his way forward. “Stan Sampson, President of Advanced Idea Mechanics. What Mr. Benjamin has in front of him isn’t a cell phone. It’s his attorney.”

“Do what now?” Judge Hullander sputtered. Continue reading →

It’s like the marketing slogan often emblazoned on cop cars, “To Serve and Protect.” People take this very seriously, not realizing it carries about as much weight as “New and Improved.” When it comes to criminal law, the phrase so often used is “worst of the worst,” not because it has any meaning but because it sells laundry detergent.

The Bail Reform Act clearly favors pretrial release in most cases. At the Detention Hearing, a person must be released unless “the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e). But the Act contains a rebuttable presumption of detention for some crimes—most federal drug offenses and § 924(c) gun charges.

Continue reading →

Criminal defense is not for the faint of heart. We do an ugly job, representing people who are often very guilty of doing very bad things to other people, and still defending them and, if it’s possible within the bounds of the law, beating the case. Sure, there are innocent  defendants and overcharged defendants, and there are defendants who’ve been burned by life and ended up committing crimes for lack of any viable alternatives within their sphere of understanding, but there are also defendants who are bad dudes. And then there’s the dirty little secret that most defendants are guilty.

Yet we defend them, and we don’t think too hard about whether we’re the good guys or not. Everyone has a constitutional right to a defense, and it’s our job to fulfill our end of the constitutional duty. Continue reading →

There has been little reason to write about the travails of Hamline University adjunct professor Erika López Prater, fired for the “harm” she caused by showing a Muslim-created “renowned 14th century painting depicting the Prophet Muhammad” in a class about Islamic art. After all, there has been near universal support for the professor, both as a matter of academic freedom and because she did everything humanly possible to accommodate the most fragile sensibility of students.

In the syllabus, she warned that images of holy figures, including the Prophet Muhammad and the Buddha, would be shown in the course. She asked students to contact her with any concerns, and she said no one did. Continue reading →